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Supreme Court, Appellate Division, Second Department, New York.

Jodi SCHULMAN, respondent, v. CONTINENTAL INSURANCE, et al., appellants.

Decided: February 22, 1999

LAWRENCE J. BRACKEN, J.P., CORNELIUS J. O'BRIEN, DANIEL W. JOY and ANITA R. FLORIO, JJ. Vedder, Price, Kaufman, Kammholz & Day, New York, N.Y. (Alan M. Koral and M. Victoria Bayoneto of counsel), for appellants. Gabor & Gabor, Garden City, N.Y. (David G. Gabor and Samuel D. Carucci of counsel), for respondent.

In an action, inter alia, to recover damages for unlawful termination from employment, the defendants appeal from an order of the Supreme Court, Nassau County (Dunne, J.), entered March 16, 1998, which denied their motion for summary judgment dismissing the complaint or, in the alternative, for partial summary judgment limiting the plaintiff's lost earnings claim for failure to mitigate damages.

ORDERED that the order is modified by (1) deleting the provision thereof denying those branches of the motion which were for summary judgment dismissing the first and third causes of action and substituting therefor a provision granting those branches of the motion, and (2) deleting the provision thereof denying that branch of the motion which was for summary judgment dismissing the second cause of action insofar as asserted against the defendants Peter Noble, Roger Graham, and Alan Pritz and substituting therefor a provision granting that branch of the motion;  as so modified, the order is affirmed, without costs or disbursements.

The plaintiff was employed by the defendants Continental Insurance and Continental Insurance Company (hereinafter collectively referred to as Continental) and was fired following a June 7, 1997, meeting with her immediate supervisor, the defendant Reina Gregorio, and the personnel officer, the defendant Peter Noble.   Subsequently, she commenced an action against Continental and the individual defendants, Gregorio, Noble, Alan Pritz, her former supervisor, and Roger Graham, Gregorio's supervisor.   In her complaint, the plaintiff alleged, inter alia, that she was unlawfully terminated from her employment.

 The plaintiff's first cause of action alleges that the defendants interfered with her prospective business relations.   The individual defendants denied speaking to prospective employers of the plaintiff except for several brief and innocuous conversations.   In response, the plaintiff failed to adduce admissible evidence that supported her allegations.   The plaintiff's contention that the defendants must have made disparaging remarks because she was not hired by other companies is speculative.   Additionally, the plaintiff's conclusory assertions that the potential employers related to her information that only the individual defendants knew, or that the potential employers spoke to “somebody”, cannot sustain her burden of controverting the defendants' evidence.   Thus, that branch of the defendants' motion which was for summary judgment dismissing the first cause of action should have been granted (see, Shi-Hyong Moon v. Southside Hosp., 248 A.D.2d 523, 669 N.Y.S.2d 876).

 With respect to the plaintiff's second cause of action sounding in conversion, the defendants' evidence established that Gregorio was delegated the task of returning the plaintiff's personal property and the plaintiff does not controvert that the other individual defendants did not handle the property.   Since the plaintiff's allegations fail to establish any viable cause of action in conversion insofar as asserted against the defendants Noble, Graham, and Pritz, these defendants are entitled to summary judgment dismissing the second cause of action insofar as asserted against them (see, Masella v. Leemilt's Flatbush Ave., 112 A.D.2d 1027, 493 N.Y.S.2d 24).   However, since issues of fact exist as to whether Gregorio, and by extension Continental, converted the plaintiff's personal property, these defendants are not entitled to summary judgment on the second cause of action.

 The third cause of action sought to recover damages for defamation.   The individual defendants denied participating in two incidents in which the plaintiff alleged that on the day after her termination, they stated at a cocktail party that she had thrown a computer out of her office window and that they displayed a photocopy of the plaintiff's photograph containing the word “dangerous” on it.   They also denied making defamatory remarks to prospective employers.   In response, the plaintiff relied entirely on speculative hearsay and failed to adduce admissible evidence that the individual defendants published the defamatory statements or that a third party received publication of the defamatory statements from the individual defendants.   Thus, the defendants were entitled to summary judgment as to this cause of action as well (see, Elsky v. Hearst Corp., 232 A.D.2d 310, 648 N.Y.S.2d 592;  Barber v. Daly, 185 A.D.2d 567, 569-570, 586 N.Y.S.2d 398;  see generally, White Rose Food v. Mustafa, 251 A.D.2d 653, 674 N.Y.S.2d 438;  Sonaike v. Sogade, 253 A.D.2d 871, 678 N.Y.S.2d 526;  Schwartz v. Licht, 173 A.D.2d 458, 570 N.Y.S.2d 83).

With respect to the sixth and seventh causes of action, alleging gender discrimination and disability discrimination, respectively, the plaintiff submitted admissible evidence sufficient to create triable issues of fact as to whether her termination resulted from unlawful gender discrimination or disability discrimination (see, Ferrante v. American Lung Assn., 90 N.Y.2d 623, 630, 665 N.Y.S.2d 25, 687 N.E.2d 1308;  Chertkova v. Connecticut Gen. Life Ins. Co., 92 F.3d 81, 87 [2d Cir.] ).

 The defendants' contention that the plaintiff's lost earnings must be capped at one month for failure to mitigate her damages must be rejected since an issue of fact exists as to whether the jobs that the plaintiff was offered were equal or inferior to her position at Continental (see, New York City Bd. of Educ. v. Sears, 83 A.D.2d 959, 443 N.Y.S.2d 23).

Contrary to the plaintiff's contention, the defendants' use of excerpts from examination before trial transcripts in support of their motion was not improper (see, Garcia v. Mondragon, 159 A.D.2d 481, 552 N.Y.S.2d 352).


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